February 18, 2015

Lawyer Wrongfully Dismissed in Newfoundland and Labrador

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Turner v. Newfoundland and Labrador (Legal Aid Commission), 2014 NLTD (G) 156, is a new case out of Newfoundland and Labrador addressing applicable damages in the context of a wrongful dismissal from employment. Turner had been employed by the Legal Aid Commission as a staff lawyer for 22 years when he was terminated in 2003. The Legal Aid Commission claimed that Turner was terminated for cause, alleging that he was incompetent, that he had inadequate knowledge of his files, and that he had generally been dishonest with management regarding the reporting of his work and in claiming he had an excessive workload. In the termination letter, the Legal Aid Commission noted that it was refusing to pay Turner severance pay on the basis that he had been terminated with cause, and that it was refusing to pay accumulated vacation pay, indicating that it was not satisfied that Turner had accumulated same. The Legal Aid Commission claimed that Turner was responsible for costs associated with time spent by staff solicitors and the Commission to rectify Turner’s practice, and threatened legal action reclaiming past wages paid due to insufficient work or work of insufficient quality to warrant his salary. The Legal Aid Commission also made a complaint to the law society claiming that Turner’s practice breached the Code of Professional Conduct.

The trial judge found that the Legal Aid Commission had no set policy, nor was there consistent direction given to staff lawyers, regarding such items as the number of files to be carried by a lawyer. The work environment was found to have been in crisis with lawyers lacking control over the number of files they were assigned. The decision notes that the employment context, including the workplace environment and existing practices is of significance when assessing whether just cause for termination exists. The decision also notes that the threshold to justify a dismissal is higher for long-term, rather than short-term employees. While Turner’s practice was not perfect, the trial judge found there were insufficient grounds for termination. It was concluded that there was insufficient evidence to show that Turner had been involved “in serious misconduct, habitual neglect of duty, incompetence or conduct incompatible with his duties or prejudicial to the employer’s business,” and therefore summary dismissal was inappropriate. The trial judge found that Turner had not been afforded the same opportunities as his peers and that management oversight had been lacking.

At the time of termination, Turner was 52 years old with 22 years of employment with the Legal Aid Commission. It was determined that 22 months was a reasonable notice period in the circumstances. Turner at the time of his dismissal was making a gross income of $91,022 per annum, so the amount owing was determined to be $166,873.74, plus any applicable salary increases during that period, with a deduction for employment income he actually did earn during the notice period.

Turner was additionally awarded benefits, including (1) the capital value of the amount by which his pension would have increased during the notice period, less the contributions he would have been required to make with all necessary adjustments; (2) the Legal Aid Commission’s premium to the Canada Pension Plan for the notice period; (3) all accrued vacation pay; (4) and the amount of the Legal Aid Commission’s contribution for insurance coverage for the notice period.

The trial judge found that Turner’s mental health was impacted and exacerbated by the Legal Aid Commission’s conduct beyond normal distress or hurt feelings as a result of the dismissal. It was determined that his suspension with pay, investigation, and the order to turn in his keys and vacate the premises did not support a finding of bad faith. However, the trial judge found that the Legal Aid Commission’s failure to allow Turner to avail of a grievance process to which he was entitled; their failure to consider the use of progressive discipline; the tone and content of the termination letter; and the allegations the Legal Aid Commission made to the Law Society were unfair and in bad faith. The range for moral damages where mental distress is proven was stated to be between $10,000 and $50,000. $30,000 was awarded in this case to compensate Turner for the bad faith actions of the Legal Aid Commission, noting in particular the professional nature of the employment involved. Punitive damages were refused. Judgment interest and costs were awarded to Turner.

Lessons for Employers:

There is a very high threshold of misconduct to warrant summary dismissal, particularly in the context of a long-term employee. If a court finds that an employer has improperly terminated an employee, damages are awarded equivalent to the wages and benefits to which the employee would have been provided for the duration of the applicable notice period. Moral damages for actions taken by the employer in the course of the wrongful dismissal that are viewed by a court as unfair or in bad faith can also be awarded. Where mental distress is proven to have resulted from these actions, moral damages generally range from $10,000-$50,000.

Interestingly, the trial judge accepted that Turner incurred medical expenses during the notice period that would have been paid for by the Legal Aid Commission’s medical plan had Turner not been terminated, but as no evidence was before him regarding the cost to obtain private coverage or as to Turner’s attempts to find same, only the equivalent of the Legal Aid Commission’s contributions to its medical plan for that employee was ordered to be paid to Turner for the notice period.

Cox & Palmer publications are intended to provide information of a general nature only and not legal advice. The information presented is current to the date of publication and may be subject to change following the publication date.

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